United States Presidents issue executive orders to help officers and agencies of the executive branch manage the operations within the federal government itself. Executive orders have the full force of law when they take authority from a legislative power which grants its power directly to the Executive by the Constitution, or are made pursuant to Acts of Congress that explicitly delegate to the President some degree of discretionary power (delegated legislation).[1] Like both legislative statutes and regulations promulgated by government agencies, executive orders are subject to judicial review, and may be struck down if deemed by the courts to be unsupported by statute or the Constitution. Major policy initiatives require approval by the legislative branch, but executive orders have significant influence over the internal affairs of government, deciding how and to what degree legislation will be enforced, dealing with emergencies, waging 72-hour length strikes on enemies, and in general fine-tuning policy choices in the implementation of broad statutes.

There is no constitutional provision nor statute that explicitly permits executive orders. The term "executive power" Article II, Section 1, Clause 1 of the Constitution, refers to the title of President as the executive. He is instructed therein by the declaration "take Care that the Laws be faithfully executed" made in Article II, Section 3, Clause 5, else he faces impeachment. Most executive orders use these Constitutional reasonings as the authorization allowing for their issuance to be justified as part of the President's sworn duties,[2] the intent being to help direct officers of the U.S. Executive carry out their delegated duties as well as the normal operations of the federal government: the consequence of failing to comply possibly being the removal from office.[3]

An executive order of the President must find support in the Constitution, either in a clause granting the President specific power, or by a delegation of power by Congress to the President.[4]

Presidential directives are considered a form of executive order issued by the President of the United States with the advice and consent of a major agency or department found within the Executive branch of government.[7] Some types of Directives are the following:

All presidents beginning with George Washington in 1789 have issued orders that in general terms can be described as executive orders. Initially they took no set form. Consequently, such orders varied as to form and substance.[11] The most famous Executive Order was by President Abraham Lincoln when he issued the Emancipation Proclamation on January 1, 1863. Political scientist Brian R. Dirck states:

"The Emancipation Proclamation was an executive order, itself a rather unusual thing in those days. Executive orders are simply presidential directives issued to agents of the executive department by its boss."[12]

Until the early 1900s, executive orders went mostly unannounced and undocumented, seen only by the agencies to which they were directed. This changed when the Department of State instituted a numbering scheme in 1907, starting with an order issued on October 20, 1862, by President Abraham Lincoln. The documents that later came to be known as "Executive Orders" apparently gained their name from this document, captioned "Executive Order Establishing a Provisional Court in Louisiana."[6] President Franklin Roosevelt was the first to have EO declared invalid.

President Theodore Roosevelt issued 1,081 executive orders. President Truman's Executive Order 10340 in Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579 (1952) placed all steel mills in the country under federal control. This was found invalid because it attempted to make law, rather than clarify or act to further a law put forth by the Congress or the Constitution. Presidents since this decision have generally been careful to cite which specific laws they are acting under when issuing new executive orders. Likewise, when Presidents believe their authority for issuing an executive order stems from within the powers outlined in the Constitution, the order will simply proclaim "under the authority vested in me by the Constitution." instead.

Wars have been fought upon executive order, including the 1999 Kosovo War during Bill Clinton's second term in office. However, all such wars have had authorizing resolutions from Congress. The extent to which the president may exercise military power independently of Congress and the scope of the War Powers Resolution remain unresolved constitutional issues, although all presidents since its passage have complied with the terms of the Resolution while maintaining that they are not constitutionally required to do so.

Prior to 1932, uncontested Executive Orders had determined such issues as national mourning on the death of a president, and the lowering of flags to half-staff. President Franklin Roosevelt issued the first of his more than 3,500 Executive Orders on March 6, 1933, declaring a bank holiday, forbidding banks to release gold coin or bullion. Executive Order 6102 forbade the hoarding of gold coin, bullion and gold certificates. A further Executive Order required all newly mined domestic gold be delivered to the Treasury.[10]

Executive Order 13233, issued by President George W. Bush in 2001, which restricted public access to the papers of former presidents, was criticized by the Society of American Archivists and other groups, stating that it "violates both the spirit and letter of existing U.S. law on access to presidential papers as clearly laid down in 44 USC. 2201–07," and adding that the order "potentially threatens to undermine one of the very foundations of our nation". President Obama revoked Executive Order 13233 in January 2009.[14]

The Heritage Foundation has accused presidents of abusing executive orders, of using them to make laws without Congressional approval, and of moving existing laws away from their original mandates.[15]

In 1935, the Supreme Court overturned five of President Franklin Roosevelt's executive orders (6199, 6204, 6256, 6284, 6855). Executive Order 12954, issued by President Clinton in 1995, attempted to prevent the federal government from contracting with organizations that had strike-breakers on the payroll; a federal appeals court subsequently ruled that the order conflicted with the National Labor Relations Act, and invalidated the order.[16][17] President Clinton's Executive Order 13155 was also overturned. This order required federal benefits and services to be provided in foreign languages. This order was overturned by the Supreme Court, Alexander v. Sandoval (99-1908) 532 U.S. 275, on April 24, 2001.[citation needed]

Congress has the power to overturn an executive order by passing legislation in conflict with it. Congress can also refuse to provide funding necessary to carry out certain policy measures contained with the order or to legitimize policy mechanisms. In the former, the president retains the power to veto such a decision; however, the Congress may override a veto with a two-thirds majority to end an executive order. It has been argued that a Congressional override of an executive order is a nearly impossible event due to the supermajority vote required and the fact that such a vote leaves individual lawmakers very vulnerable to political criticism.[18]

On July 30, 2014, the Republican-led House of Representatives approved a resolution authorizing Speaker John Boehner to sue President Barack Obama over claims he exceeded his executive authority in changing a key provision of the Affordable Care Act ("Obamacare") on his own[19] and over what Republicans claimed had been "inadequate enforcement of the health care law," which Republican lawmakers opposed. In particular, "Republicans objected that the Obama administration delayed some parts of the law, particularly the mandate on employers who do not provide health care coverage."[20] The suit was filed in the US District Court for the District of Columbia on November 21, 2014.[21]

Executive orders as issued by the governors of the states are not statutes like those passed by state legislatures, but do have the force of law in a similar way to the federal system. Executive orders are usually based on existing constitutional or statutory powers of the Governor and do not require any action by the state legislature to take effect.

There are also other uses for gubernatorial executive orders. In 2007, for example, the Governor of Georgia made an executive order for all of its state agencies to reduce water use during a major drought. This was also demanded of its counties' water systems, however it is unclear whether this would have the force of law.

According to political science professor Phillip J. Cooper, a presidential proclamation "states a condition, declares a law and requires obedience, recognizes an event or triggers the implementation of a law (by recognizing that the circumstances in law have been realized)".[22] Presidents define situations or conditions on situations that become legal or economic truth. These orders carry the same force of law as executive orders — the difference between the two is that executive orders are aimed at those inside government while proclamations are aimed at those outside government.

The administrative weight of these proclamations is upheld because they are often specifically authorized by congressional statute, making them “delegated unilateral powers”. Presidential proclamations are often dismissed as a practical presidential tool for policy making because of the perception of proclamations as largely ceremonial or symbolic in nature. However, the legal weight of presidential proclamations suggests their importance to presidential governance.[23]

^SCOTUS, Mississippi v. Johnson, 71 U.S. 475 (1866), The Supreme Court's decision held that the President has two kinds of task to perform: ministerial and discretionary. EOs help facilitate the execution of the Executive's ministerial duties.

^93rd Cong., 2nd sess. (1974). Executive Orders in Times of War and National Emergency: Report of the Special Committee on National Emergencies and Delegated Emergency Powers, United States Senate. U.S. Govt. Print. Off. p. 23.